Social Media and Employee Privacy

The use of social media platforms has grown exponentially over the past decade, and their use is now common not only amongst individuals, but also in the business world.  These developments raise questions for employers as to whether they have the right to access employee’s social media activity. Recently the courts had to consider whether an employer accessing an employee’s social media posts (as part of a workplace investigation) constituted a breach of privacy laws.

In Jurececk v Transport Safety Victoria [2016] VSC 285 an employee used Facebook to discuss problems she was having at work.  After the employee posted an abusive message on her colleague’s Facebook wall, the employer conducted an investigation.  The investigation team undertook Google and Facebook searches of the employee’s accounts. The employee claimed that the employer breached the Information Privacy Principles (IPPs) contained in the Victorian Information Privacy Act 2000 by collecting her personal information through accessing her Facebook posts, without her knowledge.

The Court found that while the posts did constitute personal information, the method of collection did not breach the IPPs.  The Court held that the collection was necessary for the investigation.  It was reasonable for the employer to not inform the employee that her personal information had been collected, as doing so would have jeopardised the effectiveness of the investigation.

This decision demonstrates that collection of an employee’s personal information via social media by an employer will not breach privacy laws where the collection is necessary for a legitimate purpose (such as a misconduct investigation).  Employers need to be aware of its obligations under privacy law, and how these obligations affects the investigation process.

Author: Georgia Starky, Q Workplace Solutions